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My piece in The Drum: Media regulation made simple by ‘responsible truth-telling’

By MARK PEARSON

Some of you might have missed my opinion piece at ABC’s The Drum Opinion published on December 22.

I reproduce it here for your interest and you might like to add your comments to the other 100+ featured on The Drum .

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Media regulation made simple

MARK PEARSON

The solution to the news media regulation problem lies in two or three simple words, depending on whether you choose to hyphenate: ‘responsible truth-telling’.

Those words should replace the myriad of codes of ethics, codes of practice, and statements of principles that Australian journalists are expected to follow in their daily reportage.

It might sound idealistic and over-simplified but that’s what it comes down to. It is a phrase that can be read to incorporate truth-seeking, across all platforms of new, social and legacy media, by those practising the pursuit many of us still call ‘journalism’ and by those blogging, tweeting or standing on soap boxes in public parks claiming to be speaking in the public interest.

As the Supreme Court of Canada recently decided, ‘responsible communication on a matter of public interest’ is worth protecting and irresponsible communication should be discouraged.

Regulation in the form of laws has worked reasonably well to deal with irresponsible investigations and publications and harmful falsities and continues to do so.

Just because ‘co-regulation’ via the Australian Communication and Media Authority and ‘self-regulation’ via industry groups, the Australian Press Council and the journalists’ union have floundered, does not make straight-out government control of the media any more acceptable in a Western democracy.

There is already an oversupply of regulation of the media and free expression generally in this country – across all levels of government and via quasi-governmental and self-regulatory and co-regulatory bodies. Added to this there is considerable censorship of free expression in government and the corporate sector in the form of ‘spin’.

Australia’s free expression is particularly fragile because it lacks any formal expression in our Constitution, especially when this is combined with at least five inquiries into the news media this year (2011) and proposals for a press regulator with government teeth, against a backdrop of Senator Conroy’s attempts at imposing an internet filtering scheme.

The Convergence Review quite rightly takes a 21st century broad-brush view of media regulation, but the Media Inquiry chair Ray Finkelstein QC appears focussed on a mechanism to prop up the very 20th century complaints system of the Press Council, proposing some government sanctions on the publication of findings and some taxpayer funding to supplement the reluctant sponsorship of the major newspaper groups.

My own submission to the Media Inquiry proposed there should be no more laws controlling the media in this country – just better access for media consumers to the laws that already exist and a one-stop shop for the handling of complaints. It also suggested a reworking of consumer laws so that ‘prescribed news providers’ do not get an automatic exemption from the ‘misleading and deceptive conduct’ actions over their news material.

No journalists can be expected to operate effectively within deadline paying heed to all the five or six codes that might apply to them.

A single code of ethics applying to journalists and their employers across all news media, under the banner of ‘responsible truth-telling’ would address fundamental principles of truth, accuracy, verification, attribution, transparency, honesty, respect, equity, fairness, independence, originality and integrity, with exceptions only for matters of substantial legitimate public concern.

It would be supplemented by industry or workplace ‘information and guidance’ documents to help explain to journalists and editors the fact scenarios and precedents applying to a particular medium or specialty.

Any government funding could establish and maintain a one-stop media complaints shop for referring consumers’ concerns to the appropriate self-regulatory or co-regulatory body and an accompanying media literacy campaign for the broader community. The several million dollars spent on these inquiries would have been better spent on this.

Broader citizen access to broadband and the sands of time will solve most of the media regulation problems we have today, but applying existing consumer law to the news media would help. That’s the way it was for a few years after the Trade Practices Act was introduced in 1975 until intensive lobbying by media groups won them a news provider exemption from its operations.

Why revisit consumer law? Because these days most news provision is ‘just another business’ and the only news media candidates for any regulation with teeth are usually operating across state borders in ‘trade or commerce’ and are therefore subject to the provisions of what has been rebadged the Competition and Consumer Act.

The Web 2.0 environment has motivated the traditional media to focus more strongly on commercial interests than it has ever had to do previously, breaking down the traditional ‘firewall’ between advertising and editorial material. Traditional revenue streams have reduced to a trickle. That’s why they have staff freezes and can’t increase their funding of the Press Council.

Such an adjustment to consumer law would mean a scandal on a scale of ‘Cash for Comment’ or the News of the World episode could be handled for what it is: irresponsible deception of media consumers by powerful, cynical, corporate players.

It’s not a radical suggestion. The ACCC entered the Cash for Comment fray early on, but backed off when the then Australian Broadcasting Authority started investigating. Perhaps it should have persisted. Just two years ago the High Court found against Seven under the former Trade Practices Act in a case false claims about goods and services. The reform would extend this to other ethical breaches.

‘Responsible truth-telling’ would remain protected, as it should be in a Western democracy. The onus would be on the ACCC to prove the irresponsibility or falsity of the misleading material or actions and that it was contrary to the public interest.

Media Inquiry chair Ray Finkelstein dismissed my suggestions as ‘impractical’ when I appeared in the Melbourne hearings last Thursday. He seemed intent on his Bandaid-like solution for the Australian Press Council.

He might be willing to take another look at it now that the Convergence Review has flagged its own big-picture approach and its intention to return to the drawing board of media regulation.

Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. His views here do not purport to represent those of either of those organisations.

© Mark Pearson 2012

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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Consumer law holds solution to grossly irresponsible journalism

By MARK PEARSON

Australia does not need a media tribunal with regulatory powers to punish ethical transgressions.

It already has one – in the form of the Australian Competition and Consumer Commission.

My personal submission to the Independent Media Inquiry filed last week suggests that in the era of increasingly commercialised and converged media, the best protection for responsible journalism is to punish unethical, misleading and deceptive conduct by any corporation against media consumers.

A legislative solution already exists – and just requires an amendment to the existing news organisation immunity from prosecution under the ‘misleading and deceptive conduct’ provisions  at Section 18 of the Competition and Consumer Act 2010.

My submission argues that the Federal Government could give teeth to the existing protections under Section 19 of that Act by recognising that the news media in the new era is ‘just another business’ while offering strong protection for responsible, ethical journalism inquiring into serious matters of legitimate public concern.

The most serious cases of ‘misleading and deceptive conduct’ under Section 18 of Schedule 2 of the Competition and Consumer Act 2010 – in blatant disregard of the a new ethical code detailed below and with inadequate public interest grounds – should be actionable by both the ACCC and private citizens like any other consumer complaint, with the force of the regulatory powers it already holds.

The key to this would be an amendment of the ‘prescribed information provider’ exception (Section 19) so that news organisations would no longer have the blanket, almost unchallengeable protection for misleading and deceptive conduct which was introduced after their lobbying in the late 1970s and early 1980s. (I traced the background to the provision’s predecessor under the Trade Practices Act 1974 in the Australian Journalism Review in 2001.)

Instead, it would be a rebuttable presumption that such corporations publish responsible news and current affairs material of legitimate public interest in accordance with a journalism code of practice.

In other words, they would not have to defend trivial complaints on these grounds – only those where a court has ruled there had been a clear breach of their ethical code in circumstances clearly contrary to the public interest – blatantly irresponsible ‘journalism’ committed in their content creation or publication which is clearly their stock in trade.

The reform would expose media organisations from all platforms to ACCC prosecution for heinous ethical breaches along the lines of the News of the World scandal in the UK.

Anything less than the most extreme and offensive ethical transgressions impacting detrimentally on the rights of other citizens would be handled via existing laws or self-regulatory processes because they would not meet the still high threshold to overcome the s.19 exception. In fact, frivolous proceedings on lesser transgressions could result in an award of costs against the complainant in finding that they should have followed the alternative dispute resolution avenues of the existing self-regulatory or co-regulatory bodies. (Interestingly, the ACCC already has powers to pursue corporations for ‘unconscionable conduct’ under section 20, to which the media exemption does not apply.)

The High Court recently found against a media organisation under the former Trade Practices Act in ACCC v. Channel Seven Brisbane Pty Ltd [2009] HCA 19.  That decision related to false claims on ‘Today Tonight’ about goods and services. The reform would extend this to other ethical breaches.

It is essential that media outlets and journalists conform to ethical codes. It is in their interests that they do so, because it is these very ethical standards that distinguish them from the many new voices seeking audiences in the new media environment. However, my last blog demonstrated the confusing array of self-regulatory and co-regulatory documents guiding ethical standards of journalists and their outlets in this country.

No single journalist could possibly be expected to understand and operate effectively within deadline, paying heed to all that might apply to him or her, including the MEAA Code of Ethics, an in-house code, an industry code and the related laws and formal regulations that might apply. This moots strongly for a single code of ethics applying to journalists and their employers across all media, similar to the existing MEAA Code of Ethics, addressing fundamental principles of truth, accuracy, verification, attribution, transparency, honesty, respect, equity, fairness, independence, originality and integrity, with exceptions only for matters of substantial legitimate public concern.

Of course, this could be supplemented by industry or workplace ‘information and guidance’ documents to help explain to journalists and editors the fact scenarios and precedents applying to a particular medium or specialty, along the lines of the Australian Press Council’s guidance releases.

There is already an oversupply of regulation of the media and free expression generally in this country – across all levels of government and via quasi-governmental and self-regulatory and co-regulatory bodies.

Added to this there is considerable censorship of free expression in government and the corporate sector in the form of ‘spin’ or media relations policies that carefully control the flow of information to the public via the media. It would be counter-productive at a number of levels to apply new gags on the traditional media in the Web 2.0 environment. Firstly, it would send the wrong message to the international community about Australia’s level of free expression. Secondly, it would place Australian traditional media at a competitive disadvantage to new media providers who might be based overseas but reporting on Australian news and current affairs.

That said, the regulatory systems should recognise that the Web 2.0 environment has motivated the traditional media to focus more strongly on commercial interests than it has ever had to do previously. Historic sources of revenue such as classified advertising (the ‘rivers of gold’) have migrated to online providers, new media platforms have earned a share of the display advertising budgets and smart phone, tablet and web-based advertising and marketing have morphed with news content, breaking down the traditional ‘firewall’ between advertising and editorial material. News corporations should now be seen for what they really are – ‘just another business’ –  seeking the eyeballs, hits and downloads of consumers in the competitive new media environment.

Thus, the regulatory oversight of those selling news content should come under the auspices of the Australian Competition and Consumer Commission, with strong protections in place for those pursuing legitimate responsible journalism on matters of public importance. A division within the ACCC could be established to act as a ‘one-stop shop’ for the referral of citizens’ complaints about media outlets to the self-regulatory and co-regulatory bodies which would continue their complaints procedures and research functions.

The purpose of this submission is not to go into the mechanics of such legislation or its drafting. There have been legislative precedents on the use of regulatory codes as a backdrop to such a provision. For example, in the UK s12(4)(b) of the Human Rights Act directs a court to take into account ‘any relevant privacy code’ when considering whether free expression rights should outweigh privacy rights in a given situation. The ‘Journalism’ exemption to the Privacy Act 1988 at s. 7B(4) references privacy standards issued by the Australian Press Council as news organisations’ ticket to a waiver. However, the proposed reform would require more of them than simply being ‘publicly committed to observe standards’ and to have published them.

We do not need a Press Council with powers to fine or some new over-arching media tribunal you might find in small repressive regimes. If such a reform is managed properly, Australia can preserve its reputation as a nation with a relatively free media, while demonstrating it will not tolerate heinously irresponsible actions like those used by News of the World.

© Mark Pearson 2011

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.

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